WVC 23 - 4 - 2
§23-4-2. Disbursement where injury is self-inflicted or
intentionally caused by employer; legislative
declarations and findings; "deliberate intention"
defined.
(a) Notwithstanding anything contained in this chapter, no
employee or dependent of any employee is entitled to receive any
sum from the Workers' Compensation Fund, from a self-insured
employer or otherwise under the provisions of this chapter on
account of any personal injury to or death to any employee caused
by a self-inflicted injury or the intoxication of the employee.
Upon the occurrence of an injury which the employee asserts, or
which reasonably appears to have, occurred in the course of and
resulting from the employee's employment, the employer may require
the employee to undergo a blood test for the purpose of determining
the existence or nonexistence of evidence of intoxication pursuant
to rules for the administration of the test promulgated by the
board of managers: Provided, That the employer must have a
reasonable and good faith objective suspicion of the employee's
intoxication and may only test for the purpose of determining
whether the person is intoxicated.

(b) For the purpose of this chapter, the commission may
cooperate with the Office of Miners' Health, Safety and Training
and the state division of labor in promoting general safety
programs and in formulating rules to govern hazardous employments.

(c) If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury
or death, the employee, the widow, widower, child or dependent of
the employee has the privilege to take under this chapter and has
a cause of action against the employer, as if this chapter had not
been enacted, for any excess of damages over the amount received or
receivable in a claim for benefits under this chapter, whether
filed or not.

(d)(1) It is declared that enactment of this chapter and the
establishment of the workers' compensation system in this chapter
was and is intended to remove from the common law tort system all
disputes between or among employers and employees regarding the
compensation to be received for injury or death to an employee
except as expressly provided in this chapter and to establish a
system which compensates even though the injury or death of an
employee may be caused by his or her own fault or the fault of a
coemployee; that the immunity established in sections six and
six-a, article two of this chapter is an essential aspect of this
workers' compensation system; that the intent of the Legislature in
providing immunity from common lawsuit was and is to protect those
immunized from litigation outside the workers' compensation system
except as expressly provided in this chapter; that, in enacting the
immunity provisions of this chapter, the Legislature intended to
create a legislative standard for loss of that immunity of more
narrow application and containing more specific mandatory elements
than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the
legislative intent to promote prompt judicial resolution of the
question of whether a suit prosecuted under the asserted authority
of this section is or is not prohibited by the immunity granted
under this chapter.

(2) The immunity from suit provided under this section and
under sections six and six-a, article two of this chapter may be
lost only if the employer or person against whom liability is
asserted acted with "deliberate intention". This requirement may
be satisfied only if:

(i) It is proved that the employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee. This standard requires a showing
of an actual, specific intent and may not be satisfied by
allegation or proof of: (A) Conduct which produces a result that
was not specifically intended; (B) conduct which constitutes
negligence, no matter how gross or aggravated; or (C) willful,
wanton or reckless misconduct; or

(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that
all of the following facts are proven:

(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong probability of serious injury or death;

(B) That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe working condition
and of the high degree of risk and the strong probability of
serious injury or death presented by the specific unsafe working
condition;

(C) That the specific unsafe working condition was a violation
of a state or federal safety statute, rule or regulation, whether
cited or not, or of a commonly accepted and well-known safety
standard within the industry or business of the employer, as
demonstrated by competent evidence of written standards or
guidelines which reflect a consensus safety standard in the
industry or business, which statute, rule, regulation or standard
was specifically applicable to the particular work and working
condition involved, as contrasted with a statute, rule, regulation
or standard generally requiring safe workplaces, equipment or
working conditions;

(D) That notwithstanding the existence of the facts set forth
in subparagraphs (A) through (C), inclusive, of this paragraph, the
employer nevertheless intentionally thereafter exposed an employee
to the specific unsafe working condition; and

(E) That the employee exposed suffered serious compensable
injury or compensable death as defined in section one, article
four, chapter twenty-three whether a claim for benefits under this
chapter is filed or not as a direct and proximate result of the specific unsafe working condition.

(iii) In cases alleging liability under the provisions of
paragraph (ii) of this subdivision:

(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;

(B) Notwithstanding any other provision of law or rule to the
contrary, and consistent with the legislative findings of intent to
promote prompt judicial resolution of issues of immunity from
litigation under this chapter, the court shall dismiss the action
upon motion for summary judgment if it finds, pursuant to rule 56
of the rules of civil procedure that one or more of the facts
required to be proved by the provisions of subparagraphs (A)
through (E), inclusive, paragraph (ii) of this subdivision do not
exist, and the court shall dismiss the action upon a timely motion
for a directed verdict against the plaintiff if after considering
all the evidence and every inference legitimately and reasonably
raised thereby most favorably to the plaintiff, the court
determines that there is not sufficient evidence to find each and
every one of the facts required to be proven by the provisions of
subparagraphs (A) through (E), inclusive, paragraph (ii) of this
subdivision; and

(C) The provisions of this paragraph and of each subparagraph
thereof are severable from the provisions of each other
subparagraph, subsection, section, article or chapter of this code
so that if any provision of a subparagraph of this paragraph is held void, the remaining provisions of this act and this code
remain valid.

(e) The reenactment of this section in the regular session of
the Legislature during the year one thousand nine hundred
eighty-three does not in any way affect the right of any person to
bring an action with respect to or upon any cause of action which
arose or accrued prior to the effective date of the reenactment.

(f) The amendments to this section enacted during the two
thousand five session of the Legislature shall apply to all
injuries occurring and all actions filed on or after the first day
of July, two thousand five.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.